A Controversial Search of a Congressman's Office: Obstacles to Challenging the FBI's Investigation of Representative William Jefferson

Earlier this month, the FBI seized documents from Louisiana Representative William Jefferson's congressional office on Capitol Hill. Agents reportedly found documents that could prove that Jefferson was involved in accepting bribes.

In a rare show of Republican support for a Democrat, both Senator Majority Leader Bill Frist and House Speaker Dennis Hastert promptly condemned the search, arguing that the executive branch of government had violated the Separation of Powers, as well as the Speech or Debate Clause of the U.S. Constitution, by searching the office of an active Congressman. And in a startling bipartisan move, Speaker Hastert and Democratic leader Nancy Pelosi demanded the immediate return of materials that the FBI had seized during the search in question. In response to this overwhelming pressure, the President ordered that the seized records be sealed for forty-five days.

The constitutional claims are unlikely ultimately to carry the day. They do, however, call attention to a broader question into which the search of Rep. Jefferson's search neatly fits: Should courts read the Constitution to place greater obstacles in the path of law enforcement when the police propose searches and seizures that could implicate constitutional concerns beyond the usual privacy interests?

Another way of asking the question is this: Should the Fourth Amendment right against unreasonable searches and seizures demand more when other constitutional rights are also implicated?

Thus far, the Supreme Court's answer to this question has been an unequivocal "No," but perhaps it is time for that to change.

The Separation of Powers and Speech or Debate Clause Claims

News reports have attributed two different arguments to the Congresspersons who challenge the constitutional validity of the FBI's search of Rep. Jefferson's office. The first is that the FBI, as part of the executive branch of government, must not engage in searches of congressional offices because such behavior violates the Separation of Powers. The second is that the search of a congressional office violates the "Speech or Debate" Clause of the U.S. Constitution.

What do these claims mean? To assert that one branch of government has violated the Separation of Powers ordinarily amounts to an allegation that the accused branch has performed functions exclusively reserved to another and thereby usurped the other's role in a functioning democracy. One example is the line-item veto, which the U.S. Supreme Court held unconstitutional in the 1998 decision of Clinton v. City of New York.

The Court reasoned in Clinton that the President of the United States, the head of the executive branch (empowered by Article II of the Constitution) may not choose to sign some but not other portions of a bill passed by both Houses of Congress. Such cherry-picking usurps the exclusive prerogative of the legislative branch (empowered by Article I of the Constitution) to put together a bill and include or exclude items, as it sees fit. The President can either sign or veto the entire package, but he (or she) cannot exercise discretion to veto some portions and sign others; that would, in effect, represent an exercise of legislative power.

This ruling makes sense, because legislation often results from a complicated and delicate compromise between various constituencies that would never have agreed to pass the legislation without the assurance that the whole package would remain intact, surviving or dying as one.

When congressional representatives accuse the FBI of violating the Separation of Powers by searching a Congressman's office, they suggest that the executive branch has no business utilizing its discretion to troll through materials that are part of the legislative function - the documents in a legislator's official place of work. Because the FBI is likely to feel loyalty to the executive branch and because the legislative branch sometimes checks and curbs the power of the executive branch, the suggestion of usurpation does have some persuasive force.

To investigate a congressional office without implicating this concern, one alternative might be to appoint a special master - with no affinity for either branch of government - to perform such a function, much in the way that a special prosecutor is sometimes appointed to investigate potential wrongdoing by the President of the United States or other executive officials.

The second accusation - that the FBI violated the "Speech or Debate" clause by searching a congressional office - rests on the following language, contained in Article I, Section 6, Clause 1, of the U.S. Constitution: "for any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other place." The Clause is meant to prevent arrest or prosecution of unpopular legislators based on their politics.

The Supreme Court has interpreted this Clause to immunize members of Congress (and congressional aides) from prosecution for their "legislative acts," a phrase the scope of which extends to voting, conducting committee hearings, and preparing committee reports. Significantly, in United States v. Brewster, the Supreme Court specifically held that the Clause does not immunize members of Congress from prosecution for bribery.

Both arguments challenging the search of Jefferson's office have some merit, from a logical standpoint: The FBI may not be sufficiently objective when investigating a competing branch of government, and one could easily imagine that an unpopular Congressman whose values conflict with those of the executive could attract a politically motivated investigation.

For better or for worse, however, the Supreme Court has chosen to treat all searches and seizures as falling equally within the rubric of the Fourth Amendment, regardless of whether other constitutional provisions might have some relevance to a particular target.

The Merits of the Two Claims

To assess the likelihood of success for the two proposed challenges, it is important to note that the Supreme Court has yet to interpret either the Separation of Powers requirements or the "Speech or Debate" Clause to prevent the executive branch from carrying out its traditional functions when a Congressman stands accused of violating the law.

Though Rep. Jefferson is a member of the legislative branch, he is also a citizen of the United States, bound by the criminal law (including special criminal laws that prohibit corruption among government officials). The FBI has the job of investigating federal crimes, no matter who might be suspected of perpetrating them. And if the crime under suspicion is likely to have produced evidence located in a Congressman's office, then the FBI - after obtaining a warrant, which the FBI did in Mr. Jefferson's case - is fully authorized to search that office for it.

Though special prosecutors are sometimes appointed to investigate executive wrongdoing, it is Congress that legislates these appointments through special prosecutor laws. In the absence of such a law, the default investigator and prosecutor of all wrongdoing - even that committed by a sitting president - is the existing federal prosecutorial apparatus.

The Constitution does not, in other words, mandate the appointment of a special prosecutor, or - by analogy - a special master to investigate congressional offices.

The second, "Speech or Debate" Clause, claim is the weaker of the two. The Court has thus far construed this Clause to immunize a set of functions from criminal prosecution, rather than to immunize Congresspersons from investigation of wrongdoing falling outside of these functions. The Clause, in other words, is substantive, rather than procedural, and accordingly does not limit the scope of an otherwise authorized search or seizure.

Furthermore, the cases have specifically said that as a matter of substance, bribery falls outside the scope of conduct for which Congresspersons are immunized under this Clause. Challenges to the search of Rep. Jefferson's office on the basis of the "Speech or Debate" Clause are therefore unlikely to prevail in a court of law.

The Fourth Amendment

What about the Fourth Amendment? The Fourth Amendment protects the right of the people to be free from "unreasonable searches and seizures." If the Fourth Amendment governs the search of a Congressman's office, then couldn't one incorporate the above concerns about the FBI investigation into the "reasonableness" language of the Amendment?

The argument would go like this: When the FBI searches the office of a sitting Congressman in the absence of a special evidentiary showing (or perhaps, no matter what the evidentiary showing is), such a search is "unreasonable" and accordingly unconstitutional, because of the special constitutional function of Congresspersons, as recognized by the Separation of Powers generally and by the Article I "Speech or Debate" Clause in particular.

The problem with this argument is that the Supreme Court has already rejected a form of it, offered in the service of the First Amendment freedom of the press. In Zurcher v. Stanford Daily, the student newspaper at Stanford University published articles and photographs describing a violent assault by demonstrators against police at the Stanford University Hospital. The police, seeing the articles, concluded that the newspaper offices might contain additional photographs or negatives that would help identify the perpetrators of the assault. Police accordingly (and successfully) sought a warrant and proceeded to search the offices of the Stanford Daily for the evidence in question.

The Stanford Daily and its staff members subsequently brought a civil suit against law enforcement and district attorney personnel, among others, claiming that because of the Daily's status as a newspaper, the search was "unreasonable" for purposes of the Fourth Amendment. They contended that the police should have utilized a less invasive alternative method of obtaining the photographs and negatives that they sought - through, for example, a subpoena duces tecum (demanding that the recipient make an appearance with the items named in the subpoena). Using a subpoena of this type, they argued, would have enabled news personnel to review their own files and thereby avoid the exposure of confidential sources and other news matter that a police search of the offices would necessarily risk revealing.

The trial court sided with the newspaper and found that in view of the First Amendment freedom of the press, the Fourth Amendment requires that to obtain a valid search warrant, police must show not only that they have probable cause - the standard in the ordinary search case - but also that a subpoena duces tecum would lead to destruction of the evidence sought and that a restraining order prohibiting the same would be futile. The court of appeals affirmed the district court's ruling that the government had violated the Fourth Amendment.

The U.S. Supreme Court, however, reversed the lower courts' decisions and rejected the view that a newspaper gets greater protection from searches and seizures than anyone else. The Court acknowledged that the fear of attacks on freedom of the press helped motivate the framing of the Fourth Amendment right against unreasonable searches and seizures in the first place. Nonetheless, it held, the ordinary requirement of a warrant upon probable cause would sufficiently protect the interests of a free press, and nothing about the Fourth Amendment suggested that a higher standard need apply.

Many scholars, including yours truly, have criticized the Court's decision in Zurcher. For one thing, a regular warrant cannot possibly guard the freedom of the press adequately during a search for documents, because finding a specific document - no matter how honestly and carefully a search is performed - necessarily requires police to examine other, often highly secret, documents in the process.

A requirement that police show the need for such an invasive measure therefore makes a lot of sense and might easily seem implicit in the juxtaposition of a right to a free press, contained in the First Amendment, and a right to freedom from unreasonable searches and seizures, contained in the Fourth.

The Analogous Search of Jefferson

The worries that animate criticism of the FBI and its search of Congressman Jefferson are quite similar to those that drove the plaintiffs in Zurcher. If the legislative branch is to function independently - without having its ability to fulfill its constitutional role chilled by concerns over executive competition or politically motivated witch hunts - then it might seem logical to construe the Fourth Amendment right against unreasonable searches and seizures in a manner that would prevent unnecessary searches of documents in a Congressman's office.

But as in the free press context, the Court is likely to reject such claims and say that if the rough and ready warrant and probable cause are good enough to protect the people, then they are good enough to protect the people's representatives as well.

Such a conclusion might seem wrong to many readers. What is "reasonable" in one context might not be "reasonable" in another. Indeed, the use of a word like "reasonable" appears calculated to allow for flexibility when dealing with circumstances that depart from the ordinary.

Though the Court apparently prefers to have a "one-size-fits-all" approach to searches and seizures, such a preference arguably betrays constitutional values that it is sworn to protect. To guard the freedom of the legislative branch from the possible predations of the executive branch, in other words, might require the judicial branch to exercise its power of judicial review with greater nuance than it has so far exhibited.

Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her prior columns, including those on criminal law and procedure, can be found in the archive of her work on this site.